Romine v. Haag

• Decision Date: 30 June 1915
• Docket Number: No. 17127.,17127.
• Citation: 178 S.W. 147
• Parties: ROMINE et al. v. HAAG.
• Court: Missouri Supreme Court

178 S.W. 147

ROMINE et al. v. HAAG.

No. 17127.

Supreme Court of Missouri, Division No. 1.

June 30, 1915.

Appeal from Circuit Court, Butler County; C. Sheppard, Judge.

Action by Lydia E. Romine and others against Martin Haag. From a judgment for. plaintiffs, defendant appeals. Affirmed on condition that plaintiffs enter a remittitur; otherwise reversed and remanded.

E. R. Lentz, of Poplar Bluff, for appellant. David W. Hill, of Poplar Bluff, for respondents.

BROWN, C.

The petition was filed August 20, 1910. It contained two counts, the first being framed upon section 2535 of the Revised Statutes of 1909. It states that the plaintiffs were the owners in fee simple of the land described as the S. E. ¼ of the S. W. ¼ of section 25, township 24 north, of range 6 east, in Butler county, and that the defendant claims an interest therein, the exact nature and extent of which is unknown to plaintiffs, except it is adversa and prejudicial to the rights of plaintiffs, and offers to pay to the defendant all taxes paid on the land by him and those under whom he claims, with interest, and asks the statutory judgment. The second count is ejectment for the same land, with damages and rents and profits. The answer to the first count admits and avers that the defendant claims a fee-simple estate in his land, and denies that the paintiffs have any interest therein. For answer to the second count the defendant admits the possession and denies every other allegation of the petition. The answer also contains a third count as follows: "For further answer, and by way of cross-bill herein, defendant states that he is the owner in fee simple and in the actual and exclusive possession of a certain tract of land situated in the county of Butler, state of Missouri, to wit, the S. E. ¼ of the S. W. ¼ of section 25, township 24 north, range 6 east. Defendant further states that plaintiffs claim to have some title or interest in said premises adverse to defendant. Wherefore defendant prays the court to ascertain and determine the estate, title, and interest of the several parties to the above-entitled cause, respectively, in said real estate, and to define and adjudge, by its judgment or decree, the title, estate, and interest of the parties severally in and to said real property, and for his costs."

The plaintiff replied, denying the allegations of the answer, and pleading title by continuous adverse possession from the 5th day of December, 1887, until the 1st of November, 1902. Before the case came on for trial the plaintiffs dismissed as to the first count of their petition. At the trial the plaintiffs proved title in Thomas Valentine, and introduced a deed from him to Peter McCabe, who died some time during the summer of 1887, leaving a widow, Elizabeth McCabe, and no living children. This deed was dated November 16, 1887. R. F. Romine with his wife and children, who are plaintiffs in this suit, entered upon the land in April, 1889, under an arrangement with McCabe for its purchase for $4 per acre. Mrs. McCabe conveyed to Romine by deed dated December 5, 1887. Romine died August 1, 1894. At the time the Romines went on the land it was timbered, with a clearing of about 1 acre and a house, into which they moved. They remained there until in April, 1887, clearing and putting in cultivation about 20 acres, when, Mrs. Romine's health having failed, they moved away, leaving one Charles Carter in possession for them. Mr. Carter remained on the land holding it for Romine until February, 1898, raising a crop. He then left in response to threats by the sheriff to put him off in behalf of one Foley, by whom Jonathan Smiley was then placed in possession, where he remained until some time in 1900. Mr. Smiley testified that after Carter left he went on the land under an oral arrangement to purchase it from Foley and Williams, without any arrangement with them for the payment of rent, and that he paid no rent. The only arrangement was to pay $300 for the land; he had no information of any corporation or company being concerned in the trade or in the land. Afterward Foley, who transacted all the business with him, came to him and said:

"`Smiley, we don't own that land. I know who does, and I can get it for you.' I told him I didn't want it."

Foley and Williams never asked him to get off the land. About nine years before the trial John Cox and Charley Lane came and told him to get off, and to come up and see Mr. Barron. Mr. Lane testified for the defendant that he then had no connection with the H. D. Williams Cooperage Company, nor with Foley or Williams. He was doing the work for Mr. Barron, who was a representative of the "Palmer people." He did not know how Smiley got there. He ordered him off repeatedly, and it was two or three months before he got off. They succeeded in getting Mr. Smiley off some time in 1900, and placed the defendant in possession in December of that year.

Mr. Barron testified that Mr. Smiley had a lease of the land signed by Mr. Foley; that he (Barron) had had charge of the property for Mr. Palmer from June, 1899, up to the time he sold it to Mr. Haag, October 14, 1902; that Mr. Palmer claimed it under the Romine deed of trust, as well as under the deed from himself; that all the assets of the F. G. Oxley Stave Company and the Oxley Stave Company were transferred to the American Stave & Cooperage Company, to the assets of which the Palmers succeeded.

The paper muniments offered by defendant consist of:

(1) A mortgage with power to sell from Romine and wife to Elizabeth McCabe, dated December 5, 1887, acknowledged before J. C. Oats, justice of peace, and duly recorded, to secure two promissory notes for $53 each, dated December 5, 1887, and payable respectively, 12 and 24 months after date, conveying land described as follows:

"The southeast quarter of the southwest quarter of section twenty (25) in township twenty-four (24) range six (6) east"

(2) Two notes which are, with their indorsements, described in the record in the following words:

"December 5, 1887, one year after date, I promise to pay to the order of Elizabeth McCabe, fifty-three dollars, with six per cent, interest. Value received.

                                           his
                                      "R. F. X Romine
                                           mark
                

"J. C. Oats."

With the following indorsement on the back of the said notes:

"For value received I assign the within note and mortgage to I. M. Davidson.

                                               her
                            "[Signed] Elizabeth X McCabe
                                               mark
                

"Attest: J. W. Trowdredge."

Indorsement:

"Paid me to-day, December 6, 1888, forty dollars, on the within note and I gave him a

                receipt for it.            I. M. Davidson."
                

The other notes are as follows, to wit:

                                    "December 5, 1887
                

"Two years after date I promise to pay to the order of Elizabeth McCabe, fifty-three dollars, at six per cent, interest.

                                                his
                                          "R. F. X Romine
                                                mark
                

"J. C. Oats."

With the following indorsements:

"For value received, I assign the note and mortgage to M. Davidson, this April 5, 1888.

                                          her
                               "Elizabeth X McCabe
                                          mark
                

"Attest: 5. W. Trowdridge.

"For value received, without recourse on me, the within to the F. G. Oxley Stave Company.

                                         I. M. Davidson."
                

No evidence was introduced as to the' authenticity of the indorsements.

(3) A sheriff's deed" to William N. Barron purporting to have been made upon a judgment for taxes for 1896 and 1897 against Peter McCabe and R. F. Romine, dated October 7, 1901, and duly recorded. It describes the land in controversy. The files show that the process was returned not found as to both defendants, and no judgment appears upon the record.

(4) Deed from Barron to Lowell M. Palmer, dated November 25, 1901.

(5) Deed from Lowell M. Palmer and wife to Henry U. Palmer and Marion M. Miller trustees, dated April 30, 1902.

(6) Deed from Marion M. Miller, trustee, to Martin Haag, dated October 14, 1902.

The last four instruments were admitted as color of title. The mortgage was offered and excluded on the ground that it did not describe the land in controversy. Defendant's counsel said:

"If the court please, I guess we want to except to the ruling of the court."

At some time not clearly disclosed in the evidence there was a company or association doing some business in that locality, by the name of the H. D. Williams Stave & Cooperage Company, of which H. D. Williams was president and William Foley vice president It was still in existence at the time of the trial, doing business in Arkansas, where Foley resided. The F. G. Oxley Stave Company had been in the same territory at an earlier date. Then came the American, and finally the "Palmer people," from whom defendant claims. The right to the possession of the premises was submitted to the jury upon the sole issue of adverse possession. The court refused a peremptory instruction for defendant, and gave the following for the plaintiff.

"1. The court instructs the jury that if you believe and find from the evidence in this cause that R. F. Romine is dead; that Lydia E. Romine is his lawful widow, and the other plaintiffs are his only children; that the said R. F. Romine put Charles Carter in possession of the land in suit as the tenant of Romine; that the said Romine, after the 5th day of December, 1887, was in the continuous, actual, peaceable, open, and notorious possession of a portion of the land in suit for 10 consecutive years claiming to own the entire tract adversely to the defendant and the world; that the defendant and those under whom he claims, have not had such possession of the land for 10 consecutive Tears after Carter vacated the land, then and in that event your verdict in this' cause must be for the plaintiffs for the...